10 Things to Look For in Finding a Qualified Forensic Pathologist Expert
1. Is the pathologist
certified by the American Board of Pathology?
This is the most important qualification for an expert witness in the
field of pathology. Just because an expert claims to be "board-certified"
does not mean he or she is. Not all board certifications are the same.
The American Board of Pathology is the only board offering certification
in forensic pathology in which the applicant has the following qualifications:
an M.D. Or D.O. Degree from an American College of Graduate Medical
Education (ACGME) accredited medical or osteopathic school.
practice allopathic or osteopathic medicine.
minimum of 3 years training at an ACGME accredited pathology residency
minimum of 1 year training at an ACGME accredited forensic pathology
qualification examinations in Anatomic Pathology and Forensic Pathology.
Be aware that there
are experts who use degrees from on-line "diploma mills" and sham certifications
can be purchased.
2. Where was
the pathologist educated and trained?
Ask for the expert's curriculum vitae or resume. Don't be impressed
by the multitude of pages, but look at the content. Have you heard of
the universities? Do they have a good reputation? If a doctor is not
foreign-born but they chose to go to an off-shore medical school, it
is sometimes an indication that they couldn't get into medical school
in the United States. Foreign medical graduation alone should not concern
you if the doctor has subsequently completed residency and fellowship
in the United States and passed their Board examinations. It is important
to look at where they did their fellowship training: the most prestigious
forensic fellowship programs are either in large cities (such as New
York, Miami) or part of a centralized State-run Medical Examiner's Office
(such as in New Mexico or Virginia). There is also an excellent forensic training program through the Federally-financed Armed Forced Medical Examiner. But even programs with good reputations can undergo seismic changes if there is a scandal or the Chief retires. You can always Google search the name of the program along with the word "scandal" and see if any news reports come up with the expert's name on in. If you don't do this, opposing counsel definitely will.
3. Do they come
Few lawyers take the time to ask for references, but if you are finding
an expert witness via the internet, or by using an expert witness referral
service, it is a good idea to ask the expert for lawyers they have worked
with recently. Only another lawyer can tell you if the expert was readily
available, reasonably priced, easy to work with and understandable.
The lawyer can also tell you whether jurors understood their testimony,
since most pathologists don't get feedback directly from the people
they are being hired to educate.
4. Are they currently
practicing forensic pathology full-time or are they a "professional
Many forensic pathologists who practice forensic pathology full-time
at a County Coroner or Medical Examiner's Office still do some consulting
as expert witnesses "on the side". A few work part time or do per-diem
work at a County facility. However, there are several forensic pathologists
who have retired or left practicing medicine completely and work as
legal consultants full-time. The latter group can be problematic if
they are out-of-touch with the standards and requirements of current
medical practice, or are marketing themselves as "hired guns". Some
have been forced to leave civil service because of ethical violations
or political scandals. If you are hiring a "professional expert", make
sure they are well-qualified, highly recommended, and have their background
5. What is their
Many pathologists enter this field of medicine because they are more
comfortable with dead bodies than with living people. Unlike academic
medicine, where a pathologist has to have some teaching skills to maintain
their appointment, forensic pathology is very attractive to introverted
practitioners who like to work in solitude. Although all forensic pathologists
are expected to testify in legal cases, and many are quite comfortable
with it, that doesn't mean they are any good at communicating complex
medical issues. So when you are on the phone with the expert ask yourself
if they are understandable. Do they use "Med-speak" or do they explain
the medical terminology to you as they talk? Are they personable, even
charismatic? While some people are not good communicators over the phone
but are very eloquent in person, if your first interaction with the
expert is unimpressive you may want to schedule a face-to-face meeting
to see if you can understand them better. But if you can't understand
what the expert is saying - then neither will the jury.
6. What is their
area of expertise?
Not every forensic pathologist may have the specialized knowledge you
need. A land-locked forensic pathologist from the Midwest may not know
much about SCUBA related accidents. A suburban forensic pathologist
may autopsy a lot of car accidents, but not a lot of multiple gunshot
wound homicides. Try to match the needs of your case to the experience
of your expert. If it is a rare or unusual type of death, try to find
an expert who has published on the subject. One way is to go to the
Library of Medicine (PubMed) and search the database for articles
on the topic. Who is the primary author on most of the publications?
Depending on the journal, many articles print the author's contact information
in fine print at the beginning or the end of the article; and if the
primary author doesn't do consulting, you can always ask them to recommend
someone in their field of expertise who does.
7. Do they have
experience testifying in cases such as yours?
Most forensic pathologists who practice in a City or County Coroner's
office are very good at testifying in criminal cases, since they get
a lot of on-the-job experience testifying for the District Attorney's
office. But not all of them have frequent contact with Public Defenders
or defense attorneys, so if you are a defense attorney, you want to
make sure your expert has experience and understands the needs of the
defense. Also, few practicing forensic pathologists have experience
testifying in civil matters as a routine part of their job. The questions
you may need them to answer may be beyond what their experience and
training allows, or outside their "comfort zone" as an expert. For example,
in an industrial accident, most forensic pathologists will be able to
testify to the cause of death and the mechanism of death, but not all
have the specialized knowledge regarding interpreting scene investigation
to answer complex questions such as: What position was the person in
when he was injured? Were the levels of drugs or medications they were
taking capable of causing impairment? Make sure the pathologist has
experience answering these types of questions before you hire them.
8. What is their
expectation of their role?
Some pathologists see their role as very limited: you send them the
material they need (typically medical records, police or incident reports,
an autopsy report and microscopic slides) and they tell you what they
think and write a report. Others will be more accommodating in offering
you additional legal support: looking up references and articles, educating
you and your staff about the medical issues as they come up, helping
you understand the medicine so that you can formulate good questions
for deposition or trial, and writing affidavits. If you ask, the individual
expert will usually tell you up front what you can expect from them.
You should also ask if they understand the different expectations of
opinions written to comply with Frye versus Daubert rules of evidence.
If an expert works in a Frye State and has never testified in Federal
court, they may not be familiar with what Daubert standards are, and
you will need to be more assertive in educating him or her about your
jurisdiction's particular needs or legal quirks.
9. Do they teach?
This is a pretty good litmus test for communication skills. The most
successful expert witnesses understand the complexity of their subject
matter, but can find a way to simplify their terminology to make the
subject accessible to a lay person. The average juror does not have
an advanced educational level and is going to get lost unless the expert
can speak to their level. Just because an expert has an academic appointment
at a medical school or university does not mean they are good teachers.
Just about any big-city Medical Examiner or Coroner's Office has academic
affiliations because the local pathology residents are required to do
a forensic pathology rotation. Does the practitioner have teaching awards?
Do they teach groups other than doctors? If they do, then this is a
pretty good indicator that they are comfortable with public speaking
and can adjust their language appropriately for the audience.
10. How can you
balance your needs with the pathologist's expertise, their proximity,
availability and your budget?
Finding the right expert for your needs is a balancing act, and it requires
you to be up-front with your expert about costs and expectations. The
expert should have plenty of experience with similar cases to give you
an estimate of how much time it takes him or her to review materials
(for example: an inch of medical records usually takes an hour) or to
research and write reports. A local expert with minimal experience may
be sufficient if the case is a local one and you are on a tight budget;
but you may need an internationally-renowned and published expert from
far away if the case is a multi-million dollar class-action lawsuit.
Obviously, the more famous or further away an expert is, the larger
the expenses will be, and it is best to discuss these issues openly
with your expert up-front so that there are no misunderstandings or
scheduling complications as deadlines approach.